When it’s OK to spy on employees

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Snooping on employees is increasingly fair game. The question is seldom whether it is legal but rather whether it will offend the sensibility of the court. As in much of employment law, in providing counsel, the law is subordinate to this "smell test." So what is the legal balance between the employer’s right to protect its interest and the employee’s right to privacy?

• Computers and emails — Employers own the equipment and therefore have the right to monitor what websites employees are visiting and review emails, including on their network BlackBerrys. Employees should have no expectation of privacy when they send personal emails or surf the Internet at work. Given the illegalities Internet and email use can lead to, including downloading pornography, defamation, breaching confidentiality, etc., employers have legitimate cause to monitor its usage. As well, with increasing overtime claims, usage can be evidence for both parties as to whether the employee is actually working. I recommend policy manuals state Internet use and emails will be monitored.

• Telephone calls — Section 184(1) of the Criminal Code makes it illegal to listen in on someone else’s telephone call unless you have consent from one of the parties to that conversation. While you are free to record your own telephone call, it is illegal to listen in on calls between your employees and customers. However, companies can circumvent this is by advising employees (and customers via a recording) that the call might be monitored. Whatever the ostensible reason provided — usually "for quality assurance purposes" — employers can use the monitoring for whatever purpose it wishes.

• Private investigators — There is no limitation on hiring investigators to obtain relevant information about employees. This commonly arises in cases of disability or workers compensation claims. In the unionized arena, employers must show a legitimate cause for the monitoring to be able to use any information obtained.

• Cameras — If employers have a legitimate reason to require cameras, such as a risk of theft, they are permissible. In unionized shops, if it will accomplish the same objective, arbitrators require cameras to be visible.

• Social networking and blogging — Checking applicants’ social networking sites and Googling them have become an essential tool of every recruiter. Given the limitations of interviews and reference checks, employers want to know if the image being presented to them is consistent with the one presented to others.

Existing employees’ blogs and posts can also be revealing. Do they appear to be seeking other employment? Is their self-description discordant with the corporate culture? There have been several cases where employees have been fired for being less than flattering toward their employers on their personal blogs.

Recently, a terminated employee of one of my clients, in her Statement of Claim, claimed to have limited market skills and to be essentially unemployable. This was belied by her description on LinkedIn, which I copied into my Statement of Defence. At trial, she will have the choice of admitting she was dissembling in her Claim or on her LinkedIn profile.

However, an employer’s investigation can also be unsavoury. In another recent case, a chief executive client advised me her LinkedIn profile was being reviewed by a lawyer who was neither her "friend" nor had advised her he was acting. It will be interesting to see how a court will react to that.

• Bag and purse check — In a union environment, searches are generally governed by the collective agreement. Employer’s management rights permit them to perform such searches when there is a theft problem and opportunity for employees to steal small objects. Employers must advise employees in advance that they will be performing those searches.

In a non-union environment such searches are more difficult, because without individual consent employers run the risk of allegations of trespass. Employees in affected positions should be required to sign consents to such searches when they are hired.

• Drug and alcohol testing — In the 1990s, the courts, in almost every case, found drug testing in the workplace to be illegal. The cases regarding random alcohol testing were more mixed because tests are less intrusive. Today, random testing is justified if workplace operations are inherently dangerous or if there has been a history of drug or alcohol related accidents. Recent decisions of the Alberta and New Brunswick courts of appeal have confirmed these trends.

Howard Levitt is senior partner of Levitt LLP, (levittllp.ca) employment and labour lawyers. He practises employment law in eight provinces and is author of The Law of Hiring in Canada, soon to be released.

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